Sex Offender Registry

'Sex Offenders Are Not Second-Class Citizens,' Says Judge While Nixing Alabama Rules on First Amendment Grounds

The decision rejects driver's licenses labeled "CRIMINAL SEX OFFENDER" and a broad demand for reports on internet use.

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"Sex offenders are not second-class citizens," writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. "The Constitution protects their liberty and dignity just as it protects everyone else's."

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls "the most comprehensive and debilitating sex-offender scheme in the nation," is a prime example.

The lead plaintiff in this case, dubbed John Doe 1, pleaded guilty to two misdemeanor charges of indecent exposure in the early 1990s, when he was living in Wisconsin. He received a six-month suspended sentence for each charge and was not required to register as a sex offender, even after moving to Alabama in 1994. But 14 years later, Alabama expanded its registry, forcing Doe to comply with ASORCNA's numerous demands and restrictions under threat of imprisonment. Among other things, that meant his driver's license was marked with the phrase "CRIMINAL SEX OFFENDER" in bold red letters. Here is how Doe describes the consequences of that notation:

I have never felt so embarrassed and ashamed in all of my life. I would not wish showing this on my worst enemy. It makes me not want to go places where I have to show it, and I try not to go places where I know I will have to. But every week, there is some places that ask me to show it, and every time, I get them evil looks from people—like I'm a murderer or something. I done paid for what I did over 25 years ago. Nobody should have to carry this. It ain't right, but I don't have a way out.

On Monday, Judge Watkins ruled that Alabama's branding of registered sex offenders' identification cards is a form of compelled speech prohibited by the First Amendment. "The branded-ID requirement compels speech," he writes, "and it is not the least restrictive means of advancing a compelling state interest." The state conceded that its ostensible purpose of alerting police officers to a sex offender's status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame. "Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others," Watkins notes.

Another aspect of Alabama's "debilitating sex-offender scheme" is a requirement that people in the registry report "email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction." Registrants also have to keep the authorities apprised of "any and all Internet service providers" they use. The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

That requirement also violates the First Amendment, Watkins concluded. "An offender must report to the police every time he connects to a Wi-Fi spot at a new McDonald's, every time he uses a new computer terminal at a public library, every time he borrows a smartphone to read the news online, and every time he anonymously comments on a news article," he writes. "Every time he walks into a new coffee shop, he must determine whether opening his laptop is worth the hassle of reporting." Those burdens "chill a wide swath of protected speech under penalty of felony," Watkins says, making the law "facially overbroad."

Watkins notes that the demand for information about online activity applied to Doe and the other four plaintiffs even though their offenses had nothing to do with the internet or children. And like other ASORCNA provisions, such as its restrictions on residency and employment, the rule applies for life, even though the risk of recidivism for most offenders declines over time to the point that registrants pose no greater threat than the average person. "The failure to account for risk is a problem throughout ASORCNA," Watkins observes. "Not all sex crimes are the same. Nor are all offenders the same."

That's a striking statement from a judge who was appointed by George W. Bush just two years after the U.S. Supreme Court upheld Alaska's sex offender registry based partly on fictitious recidivism numbers that continue to influence state and federal courts. It's a message that judges and legislators throughout the country need to hear.

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  1. If people are so dangerous you have to put them on some list after they get out, then they shouldn’t be let out

    1. Maybe they ain’t so dangerous.

      After all, just because father played with the 14 year old altar boy’s pee-pee does not make father dangerous.

      1. Meh, if mother posts a bathtub photograph on Facebook of her child getting ready for his 1st birthday party, Facebook has to remove it for violating it’s nudity policy. (We learned this today from the Reason post about Facebook taking down the pictures of King Cakes.) Say she posts it on Twitter, which tends to respect freedom of the press more than Facebook does. She makes this an annual tradition every time her child is in the bathtub preparing for his birthday party. At what age, as a follower of her Twitter account, do you call the police. Her activity can land her on a sex-offender list eventually if convicted. At what age do you start thinking that naked pictures of a child are erotic. It’s the inverse of the Arvin Vohra question.

        1. Many years ago, I think there used to be a legal distinction between child nudity and child pornography. How many of you remember the original black-and-white version of “Lord of the Flies”? They showed some of those little boys completely naked. Even their little wee-wees were fully shown. Is that movie now considered child pornography? That old film is considered a cinema classic. It’s based on William Goldig’s novel.

          I can understand a picture of a naked little boy being pornographic if he is posed in a suggestive manner or if he has an erection. However, naked little boys playing on the beach or in the tub is NOT pornographic. I can understand a nude picture of a little girl being pornographic if she is posed in a seductive manner or with her little tu-tu spread wide-open. Those who have such pictures are breaking the law and should be called to answer; however, the punishment for having pictures should not be as severe or more severe than the actual hands-on offense of raping or molesting a child.

          Some people might want to try to take a “Minority Report” angle and argue, “Yeah, but if a pedophile is attracted to little boys or little girls and he has naked pictures, YOU JUST KNOW what he or she is using them for. They’re fantasy material!!” That may well be true, but in America we do NOT have thought police….YET.

      2. How many teens have bragged about getting laid as young as 14 or even younger? When I was growing up, if a teenage boy scored with a hot older woman, that was a badge of honor; not an act of abuse. The teen who was having sex didn’t think he was being abused!

    2. Yep. Either lengthen the prison time or let the ex-convict have a normal life.

    3. Amen! If they’re deemed fit to be released,then there should be no such thing as a registry or specialized lifetime supervision for sex offenders who have served out all of their adjudged prison time.

      Civil commitment should never have been allowed to get off the ground. No matter how one tries to argue the matter, it is a legal abomination. It is a punishment based on nothing more that what some are AFRAID THEY MIGHT DO IN THE FUTURE. This is a devious end-run-around double jeopardy and an act of undeniable hypocrisy. A rapist or child molester is deemed competent to stand trial for their crimes and bear the full weight of prosecution, but then at the end of his or her sentence, they are suddenly deemed by that very same legal system that called them sane and able to stand trial to now be mentally defective to the point they present an on-going threat to society.

    4. Amen! If they’re deemed fit to be released,then there should be no such thing as a registry or specialized lifetime supervision for sex offenders who have served out all of their adjudged prison time.

      Civil commitment should never have been allowed to get off the ground. No matter how one tries to argue the matter, it is a legal abomination. It is a punishment based on nothing more that what some are AFRAID THEY MIGHT DO IN THE FUTURE. This is a devious end-run-around double jeopardy and an act of undeniable hypocrisy. A rapist or child molester is deemed competent to stand trial for their crimes and bear the full weight of prosecution, but then at the end of his or her sentence, they are suddenly deemed by that very same legal system that called them sane and able to stand trial to now be mentally defective to the point they present an on-going threat to society.

  2. Not sure I buy the “compelled speech” argument, but “overbroad”, sure, and imposing an additional penalty 14 years after an offense clearly seems like an unconstitutional ex-post-facto law.

    1. I was thinking the same thing. After thinking some more, maybe the argument is that in some instances you HAVE to show your identification for certain transactions and thus by having the big red capitalized letters you are essentially being compelled to tell people something about yourself? I don’t know, I’m not a lawyer, but that seems pretty thin to me.

    2. It’s absolutely compelled speech. When you have to produce identification to live your life, as we all must from time-to-time, then having a socially damaging, red-letter message which would tend to frustrate your efforts at living a productive life, is “carrying the government’s message.” This is judicially established and proscribed compelled speech.

    3. It is compelled speech because the bearer of the license with such a mark is being forced by the government to convey a statement that could very well not even be true any longer. The brand says, “Watch me! I’m very dangerous!”

  3. Indecent exposure is the punchline of a raunchy joke, and perhaps a sign of immaturity. I don’t know how it got turned into a major threat against the public.

    1. The perfect amalgamation of progressive’s and crazy christians?

      1. I can tell you that REAL Christians think the registry is very unfair and wrong. I’ve had people tell me they think it’s wrong. The Christians I know are of the mind that once a person pays their debt by serving their time in prison, the PUNISHMENT should be over. They also think it’s wrong not to give people on the registry a chance at a normal fulfilling law-abiding life. So don’t put Christians in the mix. Only POSERS…FAKE CHRISTIANS have such a vindictive “not at MY church” attitude.

    2. How many of you remember when “streaking” was a fad? How many of you remember Ray Stevens’ hilarious parody “The Streak”???

      ETHEL, YOU SHAMELESS HUSSY!!!!!

    3. SOMETIMES “indecent exposure” means a creep deliberately exposing his sex organ to children, but looking up the actual facts of the case is too difficult, so ALL “indecent exposure” convictions must be treated the same. (End sarcasm)

      The insane thing is that so many judges DO think this way…

      1. Does the Ray Stevens song “The Streak” come to mind?

  4. Amusing that a scarlet letter is a less horrible solution.

  5. “An offender must report to the police every time he connects to a Wi-Fi spot at a new McDonald’s, every time he uses a new computer terminal at a public library, every time he borrows a smartphone to read the news online, and every time he anonymously comments on a news article.”

    Oh, FFS! What do we pay the NSA for?

    1. The NSA is far too busy to track criminals. They already have to track millions of innocent Americans.

  6. Guess what judge is going to be investigated for child porn or even peeing in an alley? And how long will it take to sureptiously load up his computer?

  7. Eh, two minutes after they changed it to “a letter”, there’d be internet memes and News Reports about “how to tell if someone is a DANGEROUS SEX CRIMER” and telling everyone about it.

    1. Hitler only used a single letter on the Jewish Passports.

  8. While the judge’s compelled speech argument is certainly fair, I think I’d put it down to Cruel and Unusual Punishment.

    It’s cruel to conflate as identically-reprehensible such diverse array of crimes that might land an offender on a permanent list: public nudity, adultery, consensual sodomy, loitering for the purpose of solicitation, pissing in an alley, abuse of a corpse, rape, statutory rape, rape of a child under 14, manufacture and/or distribution of child pornography, etc..

  9. Could he use a different ID such as a passport card?

    1. Registered sex offenders are not eligible for passport cards, only full passports which ARE marked as belonging to someone with a past criminal sex conviction involving minors. This is the result of International Megan’s Law which Republicans pushed through Congress several years ago (under “suspension of the rules” which enabled them to pass it with a voice vote of a handful of Congress members).

      1. John Walsh was able to get the Adam Walsh Act,which has had parts of it ruled unconstitutional. See the Pennsylvania Ruling that came from their Supreme Court. John Walsh used his celebrity status to get a special closed-door session with Congress to pass this abomination. The bill was passed into law without so much as ONE WORD of public debate or discussion.

        John Walsh should be on the registry after he admitted having a relationship with an under-age teen. Why is he so special so as to be exempt from the very law he proposed?

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  11. I want to personally congratulate Judge Watkins for having the moral courage to call the registry for what it is. Thank you for showing true integrity and judicial honesty on the bench. Now if we can only get your other fellow judges to be this honest and brave.

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  13. How in the devil did unrelated comments from an older article on the sex offender registry end up in this new story. That’s juts unsatisfactory all the way.

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